News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

Three new opinions, including another consumer win

A company allegedly called a person’s cell phone and left a recorded sales pitch on her voicemail. She sued, alleging that the message violated the Telephone Consumer Protection Act’s prohibition on prerecorded calls to cell phones. The district court dismissed on the grounds that Congress wasn’t protecting people against single calls and that one message caused no concrete injury. Today, the Third Circuit disagreed on both points and reversed.

Joining Hardiman were Krause and Stengel EDPA by designation. Arguing cousel were Timothy Sostrin of Chicago for the plaintiff, Joshua Bauchner of Ansell Grimm for the company, and Andrew Pincus of Mayer Brown for the Chamber of Commerce as amicus.

The Bankruptcy Code gives priority to creditors who sold goods “received by the debtor within 20 days before the bankruptcy petition was filed. Today, the Third Circuit held that “received” requires physical possession.

Joining Hardiman again were Krause and Stengel EDPA. Arguing counsel were Kirk Burkley of Bernstein-Burkley for the appellants and David Braverman of Braverman Kaskey for the appellees.

A father sued in federal court alleging a conspiracy to deprive him of contact with his son. After filing suit, he gained custody of his son pending the outcome of state-court litigation. Today the Third Circuit affirmed dismissal of the father’s suit, holding that the father’s custody mooted his federal case, but also that the district court erred in dismissing under Younger abstention without deciding mootness.

Joining Fisher were Hardiman and Roth (although Hardiman did not join the part of the opinion where the court said because it lacked jurisdiction it could not decide the Younger issue and that the district court applied the wrong Younger test.) Arguing counsel were Jon Heintz of Jones Day for the father, James Johnson of State College for the mother, Amy Marshall of Babst Calland for a youth home, and Michael Daley of the state AOC for a state judge. The opinion thanked Jones Day for handling the appeal pro bono and for the quality of counsel’s representation.